Detroit & Milwaukee R. W. Co. v. Adams

• Decision Date: 21 May 1867
• Citation: 15 Mich. 458
• Court: Michigan Supreme Court
• Parties: Detroit & Milwaukee R. W. Co. v. Chas. E. Adams and others

15 Mich. 458

Detroit & Milwaukee R. W. Co. v. Chas. E. Adams and others

Supreme Court of Michigan

May 21, 1867

Heard May 18, 1867. [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Oakland circuit.

This action was brought against plaintiffs in error to recover the value of one sack of wool alleged to have been delivered to them, as carriers, for transportation.

Judgment was rendered in the court below for plaintiff (defendant in error).

The facts are stated in the opinion.

Judgment of the circuit court, affirmed, with costs to defendants.

Geo. Jerome, H. H. Emmons and Geo. S. Swift, for plaintiffs in error:

Until the shipping request was sent and directions were given to ship the wool, it being retained at the request of the plaintiffs, the company did not assume the liability of common carriers: 4 Allen 520; 5 Mich. 420; 7 Id. 515; 2 Pars. on Cont. (5th ed.), 179; Angell on Carriers, § 134; Edwards on Bailm., 448; Parsons on Mercantile Law, 203; Story on Bailm., §§ 533, 537.

If the plaintiffs seek to hold the defendants as carriers, it is for them to show that they had the missing sack in their possession in that capacity. Now, the evidence not only does not prove this, but renders it extremely probable that that sack, if it ever was at the depot at all, had disappeared before the liability of the defendants as common carriers commenced.

While the plaintiffs, by permission of the defendants' agent, were using a place in the depot for weighing and marking their wool, having full possession for that purpose, it is difficult to understand how the defendants were liable for the wool in any capacity. The plaintiffs occupied a part of the depot for their own convenience, and the wool was no more in possession of the defendants than if they had leased the same part of the depot to the plaintiffs.

The plaintiffs do not show that the missing sack was ever delivered to the defendants in any capacity, inasmuch as it is just as consistent with the testimony, and far more probable, that it was taken away while their draymen were drawing wool to the depot, and they were weighing and marking it, than at any time afterwards.

The defendants, up to the time when the shipping request was sent to the depot, if liable at all, were only liable as gratuitous bailors: 7 Mich. 515; Edwards on Bailm., 47; Story on Bailm., 41.

As such they were only liable for gross negligence: Story on Bailm., §§ 62, 67; Edwards on Bailm., 47; 2 Pars. on Cont. (5th ed.), 89; 17 Mass. 500; 38 Me. 55.

M. E. Crofoot, for defendant in error:

1. The railroad company is liable, as a common carrier, for the bale of wool.

The company received it into its warehouse, for shipment, in the ordinary course of business; and the delay in shipping was for its own convenience, so as to obtain cars to ship with.

The full directions were marked on the sacks, and its agent says he did not know to whom the wool was consigned, except from marks on bales, until the shipping request came.

Christiancy, J. Cooley, J. and Martin, Ch. J. concurred. Campbell, J. did not sit.

OPINION

Christiancy J.:

This was an action brought by defendants in error against the company, in a justice's court, to recover the value of one sack of wool, alleged to have been delivered to them as common carriers, for transportation.

The justice found the defendants below liable for the wool as common carriers. The proof of the loss was clear and uncontradicted, and that it occurred before the balance of the wool (of which it was a part) was shipped from the depot of the defendants.

And if there was evidence before the justice tending to show that the wool was delivered to, and accepted by the company as common carriers, then the finding of the justice must be held conclusive, though the case should be such that we, if allowed to weigh the evidence, might have arrived at a different conclusion--unless, indeed, it should appear that, admitting the truth of the evidence, the plaintiffs, for some reason, had no right to rely upon it, or admitted upon the trial some fact, or state of facts, which would clearly defeat or avoid such tendency. Was there, then, any evidence in this case tending to show that this sack of wool was delivered to, and accepted by the company as common carriers?

It was shown, and not disputed, that the general business of the company was that of common carriers of goods and passengers for hire or reward; that they kept a building or depot in Pontiac for the reception of property for transportation over their road, and for the delivery of property coming to that place upon their road. There was evidence that the plaintiffs sent one hundred and two packages of wool to this depot, at different times between the 15th and 25th of October. (On which particular day the package subsequently lost was sent did not clearly appear.) That this wool...